Synopsis

Claimants brought a motion for an order compelling discovery. Defendant opposed
the motion on the grounds that the documents and information sought are
protected by Civil Rights Law § 50-a and the self- critical analysis
privilege. In reviewing the documents in camera it is clear that they are
relevant to the pending action, and there are no compelling facts which would
warrant extension of the privilege in this case to preclude disclosure.
Claimants’ motion is GRANTED and Defendant is directed to disclose to
Claimants the information provided in camera.

ANDREW M. CUOMOAttorney General of the
State of New YorkBy: Christopher Wiles,
EsquireAssistant Attorney General

Third-party
defendant’s attorney:

Signature
date:

January 5, 2009

City:

Syracuse

Comments:

Official
citation:

Appellate
results:

See also (multicaptioned
case)

Decision

Claimants bring this motion for an order compelling discovery. Defendant
provided

some of the requested information to Claimants and submitted the disputed
discovery for in camera inspection. Defendant opposes the motion by
letter dated June 30, 2008, on the grounds that the documents and information
sought are protected by Civil Rights Law § 50-a and the self- critical
analysis privilege.

The claim asserts negligence on the part of the State for injuries Claimants
suffered when their vehicle was struck by a New York State Police vehicle driven
by Trooper Michael J. Davis. Claimants allege the Trooper was driving at an
excessive rate of speed without his emergency lights or siren activated, when he
lost control of his vehicle and went into the median, and then re-entered the
passing lane of the westbound New York State Thruway too fast striking
Claimants’ vehicle and causing it to leave the roadway and roll over.
Claimants also allege that Defendant failed to properly train and supervise
Trooper Davis.

After taking the deposition of New York State Police Sergeant Nickole
Merritt, Claimants demanded Defendant produce a copy of the entire State Police
Investigative Report for the accident which occurred on December 27, 2005.
Included in Claimants’ demand was a request for any documents relating to
any disciplinary action taken against the State Trooper involved in the
accident. Defendant’s primary objection lies with this demand, arguing
that these records pertain to internal personnel matters and are protected by
Civil Rights Law § 50-a and the self-critical analysis privilege. This
privilege, Defendant argues, is to protect from disclosure documents that
reflect an internal candid evaluation and potentially damaging criticism.
Claimants argue that there is no self-critical analysis privilege recognized in
New York State.

Defendant has provided to Claimants a copy of the New York State Police
Investigation Report, which includes a two-page form report; a five-page log,
detailing the investigation process; the supporting deposition of Gretchen R.
Schauss with a copy of the uniform traffic ticket that was issued to her
charging her with a violation of § 1128A of the Vehicle and Traffic Law; an
Identification of Photographs; the supporting depositions of Kathleen Simmons,
Timothy E. Simmons, Sr., Robert E. Simmons, Timothy E. Simmons, Jr., and Daniel
J. Simmons; a property and personal injury damage document; the MV-104A Police
Accident Report, a MV-104 Report of Motor Vehicle Accident; and a Report of
Motor Vehicle Accident Police Line of Duty Accident Report; an estimate of
accident damage to the State Police vehicle; the supporting depositions of
Christopher McCarthy and Michael D. Powell; and a two-page police blotter type
document describing the accident and identifying the injured parties. What
Defendant has not disclosed are the internal memoranda and attachments relating
to the investigation of this accident as it specifically pertains to Trooper
Davis’s conduct and disciplinary determinations.

Civil Rights Law § 50-a provides in relevant part:

All personnel records, used to evaluate performance toward continued employment
or promotion, under the control of any police agency or department of the
state...shall be considered confidential and not subject to inspection or review
without the express written consent of such police officer...except as may be
mandated by lawful court order.

Prior to issuing such court order the judge must review all such requests and
give interested parties the opportunity to be heard. No such order shall issue
without a clear showing of facts sufficient to warrant the judge to request
records for review.

If, after such hearing, the judge concludes there is a sufficient basis he
shall sign an order requiring that the personnel records in question be sealed
and sent directly to him. He shall then review the file and make a determination
as to whether the records are relevant and material in the action before him.
Upon such a finding the court shall make those parts of the record found to be
relevant and material available to the persons so requesting.

By this motion Claimants seek an Order directing the Defendant to produce the
undisclosed documents relating to the disciplinary evaluation of Trooper Davis.
Defendant has voluntarily produced the documents for in camera
inspection, and thus the initial inquiry required by Civil Rights Law §
50-a is not necessary. The inquiry then turns to whether the documents produced
in camera are relevant and material to the action. In reviewing the
documents it is clear that they are relevant to the pending action, as they
involve an evaluation of the Trooper’s conduct in the accident which is
the subject of the claim.

Defendant argues that the documents are also privileged under the
“self-critical analysis privilege.” This common-law privilege has
been recognized by some federal courts, but despite some discussion, it has not
been applied in New York State based upon the Court’s and counsels’
research (see In re Crazy Eddie Securities Litigation, 792 F Supp.
197; Roberts v Carrier Corp., 107 FRD 678, Witten v A. H. Smith &
Co., 100 FRD 446, affd 785 F2d 306; O’Connor v Chrysler
Corp., 86 FRD 211; Wright v Patrolmen’s Benev. Assn., 72 FRD
161; Gillman v United States, 53 FRD. 316; Bredice v Doctors Hosp.,
50 FRD 249 affd without opn. 479 F2d 920; Pkfinans Intern. Corp. v
IBJ Schroder Leasing Corp., 1996 WL 675772; Lamitie v Emerson Electric
Co.-White Rodgers Division, 142 AD2d 293; Martin A. v Gross, 194
AD2d 195; RKB Enterprises, Inc. v Ernst & Young, 195 AD2d 857). The
privilege has not been readily defined but generally protects from disclosure
mandated self-evaluative reports, with its purpose to encourage the candid and
complete cooperation of participants and “encouraging self-improvement
through uninhibited self-analysis and evaluation.” (In re Crazy Eddie
Securities Litigation, 792 F Supp. 197, 205). In Lamitie v Emerson
Electric Co.-White Rodgers Division, 142 AD2d 293, where the privilege
although not recognized was most thoroughly discussed, the court declined to
recognize the privilege and noted that courts have been highly restrictive in
finding any common-law privileges deferring to the legislature. The Court in
Lamitie found that the defendants had not shown any compelling
circumstance including having failed to show that confidentiality in that case
was essential to its critical evaluation and involvement with the overseeing
agency which would warrant extending a privilege. Here the evaluations that
Claimants seek are already subject to the Civil Rights Law § 50-a
privilege, which precludes the immediate dissemination of an internal State
Police investigation without court review. Defendant has not shown how in this
case disclosure of the evaluations of the Trooper involved in this accident will
chill any future internal evaluation of the conduct of individual State Troopers
involved in vehicular accidents. The Trooper involved acknowledged during his
deposition that the accident was investigated and found to be preventable based
upon his speed. The Trooper also acknowledged that he was disciplined. In
reviewing the documents in camera there are no compelling facts which
would warrant extension of the privilege in this case to preclude disclosure.

Accordingly, Claimants’ motion is GRANTED and Defendant is directed to
disclose to Claimants the information provided in camera.

January 5, 2009Syracuse,
New York

HON. DIANE L. FITZPATRICKJudge of the Court of Claims

The Court has considered the following documents in deciding this motion:

1. Notice of Motion

Affidavit of Arthur W. Wentlandt, Esquire, sworn to May 22, 2008, in support
with exhibits attached thereto.